How Strong Is Bragg’s Case?
Andrew C. McCarthyApril 23, 2024
How might former president Trump’s team might go about the cross-examination of David Pecker? A Trump pal and formerly the chief of the National Enquirer’s parent company, Pecker is the first witness in the trial of elected Democratic DA Alvin Bragg’s prosecution of the de facto GOP presidential candidate.
Prosecutors always want to start strong. Normally, one would assume that, since Bragg thinks Pecker an important enough witness that prosecutors are leading off with him, Team Trump will have to go hard at him — grill him aggressively to shake his story and damage his credibility.
Notice, I said “normally.” There is nothing normal about this case.
Pecker is likely to be a very good witness for Trump. The misimpression that he is apt to be hostile stems from a basic misunderstanding of this strange prosecution.
In the usual media-Democrat-complex organs on yesterday’s real first day of trial, the refrain was the same: Bragg has a very strong case against Trump . . . except that the charges are complex.
This gets it backward. Bragg has a weak case because the charges are not merely complex. Bragg is trying to convict Trump of a charge he hasn’t actually brought and that he cannot prove because the allegation is neither true nor a crime.
In the purported “statement of facts” written by Bragg — but, vitally, not charged by the grand jury in the Trump indictment, as the Fifth Amendment to the Constitution requires — the district attorney alleges that Trump stole the 2016 election by conspiring to suppress politically damaging information about extramarital affairs. In truth — and notwithstanding that Alvin Bragg is a 2016 election denier, which Democrats tell us is a terrible thing, at least as concerns the 2020 election — Trump won the 2016 election fair and square. The grand jury’s indictment, moreover, does not charge Trump with the crime of conspiracy; it alleges that Trump falsified business records with fraudulent intent.
It’s not enough to say that the indictment does not charge conspiracy to suppress politically damaging information. It could not have charged such a conspiracy. In the criminal law, conspiracy is simply an agreement by two or more people to commit a statutory penal offense — a crime. It is not a crime to suppress politically damaging information. Unlike, say, murder, bank robbery, and distributing illegal narcotics, which are all offenses in the penal code, there is no statutory crime of “suppressing politically damaging information.”
Furthermore, as should by now be apparent, suppressing politically damaging information is something campaigns routinely do. Yes, even Democratic campaigns, as Joe Biden of the lucrative Biden family influence peddling business and Bill Clinton and his the “bimbo eruption” rapid-response team could tell you. Since suppressing politically damaging information is not a crime, an agreement to do it cannot be a crime — even if that agreement is hyperbolized by Bragg and his prosecutors as a “scheme” or a “conspiracy.”
When Bragg’s apologists say he has a “strong case,” what they mean is that the evidence of what happened is overwhelming. That should not surprise us because the evidence proves activity that was legal.
When people engage in legal activity, it is generally not difficult for prosecutors to prove what they did. Of course, if the legal things that people do are unsavory, people are often reluctant to admit them — e.g., Donald Trump continues to deny that he had a tryst with porn star Stormy Daniels in 2006, when recently wed to Melania, who was home with their just-born son, Barron. By and large, though, it is not hard for prosecutors with subpoena power to gather immense evidence of legal activity because, even if they are reluctant, witnesses tend not to be self-destructive. They know they can can get in more hot water by lying to investigators than by admitting to shady but lawful conduct. Hence, they acknowledge it.
Pecker has been called by prosecutors to explain the “catch and kill scheme.” That is the pejorative term by which Bragg is trying to hoodwink the jury into believing a conspiracy was afoot.
To the contrary, it is not a crime to plan to pay money and other consideration to people who possess information that could be politically damaging — or at least claim to possess it — in order to secure their silence. In reality, what Bragg wants the jury to see as a lawless “catch and kill” device is well established in the law as a non-disclosure agreement. In an NDA, for the payment of money and other consideration, a person or entity in possession of potentially damaging information is paid by the person or entity whom it could damage.
Though darkly described as “hush money” deals, NDAs are neither illegal nor untoward. That is because they are legally enforceable only insofar as there is no legal obligation to disclose the information suppressed by NDAs. For example, let’s say X suspects his business is being embezzled. He brings in his accountant friend, Y, to scrutinize the books. But because X does not want the world to know he suspects one of his business partners is crooked, X and Y execute an NDA requiring Y to keep the investigation confidential. That would be a civilly enforceable NDA — if Y ran to the media to reveal what he’d learned about X’s business, X could sue him. But on the other hand, if X paid Y for his services, Y would have to reveal that money payment to the IRS — the NDA cannot defeat the legal duty to report income and pay taxes. In addition, if the local prosecutor suspected criminality at X’s business and issued a grand-jury subpoena to Y, then Y would be required to testify; the NDA would not shield X and Y from their legal obligation to disclose relevant evidence in a law-enforcement investigation.
Contra Bragg, there is no legal obligation to disclose extramarital affairs. There is no law that says candidates for public office — particularly Republican candidates loathed by Democrats — must publicly expose every skeleton in their closets.
Not surprisingly, then, payments to silence people in that context are not campaign expenditures under federal law. That’s because they are not obligations directly related to advocacy for the election of one candidate or the defeat of another. Unlike, say, polling or political advertising, such payments are private obligations independent of a political campaign. That doesn’t change even if the fact that a candidate is running for office gives him more incentive to pay for an NDA — i.e., the political motive to pay for an NDA does not transmogrify it into a campaign expenditure. (If it did, that would mean candidates could use campaign donations to silence porn stars with whom they’ve had flings, which would itself be scandalous.) That is why the Federal Election Commission and the Department of Justice — the federal agencies with exclusive jurisdiction to enforce federal campaign laws in elections for federal office — did not even seek to fine Trump civilly, much less prosecute him criminally.
Because what Trump did with Pecker was not illegal, Trump’s defense has no incentive to seek to attack Pecker’s testimony — at least as long as that testimony is truthful. Trump’s quarrel is with the district attorney’s distorted application of the law (including federal law that Bragg has no authority to try to enforce) and with the judge who is allowing Bragg to proceed in this fashion.
Bragg does not have a strong case. He has a mountain of evidence that Trump engaged in conduct that was legal, even if it is evidence that illuminates Trump’s deep character flaws and cynicism.
Andrew McCarthy is a former Federal Prosecutor.
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